Extraordinary Circumstances: The GOP Judges Letter and the Gang of 14

Back in 2005, when seven Republicans and seven Democrats in the Senate came together to form the “Gang of 14” in order to prevent Senate Republicans from deploying the “nuclear option” to do away with the filibuster of judicial nominees, they agreed to cloture votes on three controversial Bush nominees and pledged that, from that point on “nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.”

What exactly the phrase “extraordinary circumstances” meant, nobody was sure, as even the agreement reached by the group openly stated.

Following this agreement, no Bush administration judicial nominees were successfully filibustered – not even the nomination of Samuel Alito to sit on the Supreme Court.  Considering that Alito was nominated only after the Right had destroyed President Bush’s first choice, Harriet Miers, and forced her to withdraw. If anything met the vague “extraordinary circumstances” standard, it was Altio’s nomination, but even then efforts to filibuster his nomination went nowhere.

Today, the Committee for Justice’s Curt Levey weighs in on the Senate Republicans’ threat to filibuster any of President Obama’s judicial nominees if they are “not consulted on, and approve of, a nominee” from their respective states, praising them for standing together and standing up to the Democrats’ hypothetical attempts to ram through a bunch of “extreme nominees”:

The most significant aspect of yesterday’s letter is the fact that it was signed by all GOP senators. All 41 Republicans will be needed for the party to use the filibuster – or threat thereof – as a tool to force extended debate on Obama’s judicial nominees and, if necessary, to block nominees so extreme that they meet the “extraordinary circumstances” standard set forth in the Gang of 14 agreement. Without such a tool, Democrats would likely rush Obama’s more extreme nominees through the Senate in order to avoid the controversy that would spring from a full airing of their records.

But the Senate Republicans’ letter doesn’t threaten to filibuster in “extraordinary circumstances” – it threatens to filibuster every single nominee unless Obama caves to their specific set of demands. Levey is claiming that any nominee they deem “extreme” automatically triggers the “‘extraordinary circumstances’ standard” and thus justifies a filibuster when the original intent of that Gang of 14 provision was to do away with the filibuster except for under, you know, “extraordinary circumstances.”

How did something designed to end the filibuster when Democrats were using it become the justification for the filibuster now that Republicans are intending to use it?

Furthermore, the text of the Gang of 14’s “Memorandum of Understanding on Judicial Nominations” explicitly limited its scope to the 109th Congress:

This memorandum confirms an understanding among the signatories, based upon mutual trust and confidence, related to pending and future judicial nominations in the 109th Congress.

The entire agreement was designed to avoid a nuclear showdown in the Senate during the 109th Congress, yet Levey is claiming that it somehow created a permanent standard that exists to this day when it clearly does nothing of the sort and was never intended to do so.

So, aside from the fact that the Gang of 14’s compromise was limited to a past Congress and the GOP letter doesn’t refer to “extraordinary circumstances,” Levey analysis is spot on.